Toleration Status Due to Care Obligations in Germany

Toleration status (Duldung) is not a residence permit. It is the temporary suspension of a deportation order, regulated under Section 60a of the Residence Act. Individuals who are obligated to leave Germany but whose deportation cannot lawfully or practically be carried out are granted toleration status under this provision. This status protects them from immediate deportation, though it does not grant any right to remain in Germany.

The Federal Ministry of the Interior distinguishes, in its administrative guidance, between two fundamental categories of toleration status granted on a case-by-case basis: entitlement-based toleration under Section 60a(2), first sentence, AufenthG, and discretionary toleration under Section 60a(2), third sentence, AufenthG.

Entitlement-based toleration must be granted when deportation is factually or legally impossible. Factual impossibility includes, among other things, a lack of fitness to travel due to illness. Legal impossibility may arise, in particular, from an unreasonable interference with the right to respect for family and marital life.

Discretionary toleration, by contrast, does not require strict impossibility. It may be granted where urgent humanitarian or personal reasons require the person’s temporary presence in Germany. The Federal Ministry of the Interior expressly cites, as an example, the temporary care of a seriously ill family member. In every case, the authority must weigh whether the public interest in ending the person’s stay outweighs the significant hardship that deportation would cause.

A significant drawback of toleration status is that periods spent under this status generally do not count toward later residence permits or toward the waiting period for citizenship. The status also carries a number of restrictions, including limits on freedom of travel and on taking up employment. Toleration is generally granted only for as long as the specific obstacle to deportation is expected to persist and must be reviewed at least every three months.

A serious illness, whether affecting the person obligated to leave or a relative for whom that person provides care, can constitute a central obstacle to deportation. The German Institute for Human Rights, in its analysis of deportations involving illness, has pointed to the human rights protection obligations arising from the right to life and physical integrity, as well as the international law principle of non-refoulement. Under these principles, individuals may not be deported where doing so would endanger their life or seriously worsen their state of health.

Two scenarios should be distinguished in the context of care obligations.

If the person obligated to leave is themselves seriously ill or in need of care, and is therefore unfit to travel, entitlement-based toleration under Section 60a(2), first sentence, AufenthG applies. According to the Federal Ministry of the Interior’s administrative guidance, a lack of fitness to travel due to illness is expressly recognized as a factual obstacle to deportation that obligates the authority to grant toleration status.

If the person obligated to leave provides care for a relative living in Germany who could not be adequately looked after without that support, discretionary toleration under Section 60a(2), third sentence, AufenthG is primarily the applicable option. The Federal Ministry of the Interior expressly names the temporary care of a seriously ill family member as an example of an urgent personal reason that can justify discretionary toleration. Whether a legal obstacle to deportation also exists, for example due to an unreasonable interference with the right to family and marital life, must be assessed based on the individual circumstances. The right to family reunification may also be relevant here, as it can carry particular significance where a relative requires care.

The Institute for Human Rights emphasizes that when assessing deportation obstacles, the fundamental and human rights of all parties involved must be taken into account, both those of the person obligated to leave and those of the relative requiring care. In practice, however, significant hurdles exist in proving such obstacles.

A central tool for demonstrating illness or care related obstacles to deportation is the qualified medical certificate (qualifizierte ärztliche Bescheinigung). Since the legislative amendments of 2016 and 2019, the requirements for such certificates have increased considerably. The Federal Ministry of the Interior has clarified, in its guidance on Section 60a(2c) AufenthG, what such a certificate should contain:

The certificate should describe the factual circumstances underlying the medical assessment, including the patient’s medical history and the period of examination. It should state the method used to gather this information, including any examinations carried out and any information obtained from third parties. It must present the medical condition in the form of a specific clinical diagnosis and indicate the severity of the illness. Decisive for establishing a deportation obstacle, the certificate must also set out the likely health consequences that deportation would cause. According to the Ministry’s guidance, a certificate that provides only a diagnosis without this additional information does not qualify as sufficient.

The certificate must also be submitted without delay, generally within two weeks according to the Ministry’s guidance. Anyone who submits a medical certificate only shortly before a scheduled deportation risks having it dismissed by the authority as submitted too late.

The German Institute for Human Rights has noted that access to qualified medical certificates can be hindered by a range of practical obstacles, including shortened procedural timeframes, a shortage of medical specialists, language barriers, and financial and bureaucratic hurdles. These difficulties affect individuals held in immigration detention with particular severity. Despite these challenges, the medical certificate remains indispensable: without it, an applicant has little chance of credibly establishing a deportation obstacle before the immigration authority.

In addition to documenting the relevant illness, whether the applicant’s own or that of the relative requiring care, applicants should also demonstrate that no equivalent alternative care arrangement is available. This can be supported through statements from care service providers, the Medical Service (Medizinischer Dienst), or social welfare authorities.

Applications should always be submitted in writing. A written application preserves the applicant’s ability to pursue legal remedies in the event of a refusal or a failure to act on the application. It is also important to be well prepared for any hearing before the immigration authority, as all statements made are recorded and can significantly influence the authority’s decision. The Federal Ministry of the Interior’s administrative guidance is not legally binding on immigration authorities but offers them meaningful guidance in practice. In addition, individual German states have issued their own decrees clarifying how the requirements for the relevant residence permits should be interpreted.

For applications involving care obligations, we recommend assembling the following documents in this order:

1. Qualified medical certificate addressing the applicant’s own need for care or that of the relative requiring care,
2. Proof of the care level (Pflegegrad) assigned to the relative requiring care,
3. Evidence that no equivalent alternative care arrangement is available,
4. Documentation of the care already provided (for example, a care log or confirmation from a care support center),
5. Identity documents and proof of the applicant’s residence history to date.

Establishing a care related deportation obstacle and securing a path toward stable residence rights are legally demanding processes that require precise argumentation before the immigration authority. Schlun & Elseven Rechtsanwälte supports clients in assessing their legal situation, preparing and submitting applications, and enforcing their rights through objection and appeal proceedings. We encourage clients to contact our firm early so that we can develop the right strategy for their individual case.